4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

This was an Application to dismiss two Actions for delay pursuant to Rule 4.31 and Rule 4.33. The Actions arose from the collapse of a common law relationship between Mr. Lofstrom and Ms. Radke. Mr. Lofstrom’s first Action was for guardianship rights over Ms. Radke’s biological children (the “Parenting Claim”), and the second Action was for division of common law property (the “Property Claim”).

With regards to the Parenting Claim, Justice Graesser first considered Rule 4.33, which requires the Court to dismiss the Action on Application if three or more years have passed without significant advance in the Action. Justice Graesser found that significant steps had been taken by Mr. Lofstrom to advance the Parenting Claim since August 26, 2016. Specifically, Mr. Lofstrom had made an Application for an interim parenting Order in 2017, which was a “significant step” for the purposes of Rule 4.33. Justice Graesser then turned to consider Rule 4.31. Rule 4.31 requires an Applicant to prove that the Plaintiff has failed to significantly advance the Action as a result of inordinate, inexcusable delay and that the Applicant has been significantly prejudiced by the delay. Justice Graesser found that two years of inaction was inordinate in the context of parenting and contact Applications. His Lordship further noted that the relationship had ended more than five years prior and as such, there was presumed prejudice to Ms. Radke and her children. Justice Graesser could find no reason to allow the Parenting Claim to proceed and therefore dismissed the Parenting Claim pursuant to His Lordship’s discretion under Rule 4.31.

With regards to the Property Claim, Mr. Lofstrom relied on the advances in a criminal proceeding to argue that the Property Claim was being advanced. Mr. Lofstrom also filed a new Affidavit of Records but retracted previously disclosed records. Justice Graesser found that neither the criminal proceedings nor the new Affidavit of Records significantly advanced the Action. After reviewing the proceedings of the Property Claim, Justice Graesser found that none of Mr. Lofstrom’s activities after August 26, 2016 constituted a significant advance of the Property Claim. Specifically, Mr. Lofstrom’s failure to produce records and proceed to Questioning, as directed by the Case Management Justice, showed that no significant step had been taken to advance the Action. Justice Graesser granted Ms. Radke’s Application to dismiss the Property Claim for delay under Rule 4.33. Justice Graesser then considered Rule 4.31 in the alternative. Justice Graesser found the delay on the Property Claim to be inordinate and that Mr. Lofstrom had no reasonable excuse for the delay, but that there had no significant prejudice to Ms. Radke. Therefore, Justice Graesser noted that he would not have granted the Application to dismiss the Property Claim under Rule 4.31.

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